Roe v. Wade is solid constitutional law. The U.S. Supreme Court will overturn it anyway
I expect in about a year that the Supreme Court will overrule Roe v. Wade and end constitutional protection of abortion rights.
On May 17, the Court granted review in Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi law that prohibits abortions after the fifteenth week of pregnancy. In light of the current composition of the Supreme Court, there are five and maybe six votes to overrule Roe and allow states to prohibit all or virtually all abortions. The case will be argued in Fall 2021 and likely decided in June 2022.
The Supreme Court has said that the “essential holding” of Roe v. Wade is that states cannot prohibit abortions prior to viability, the time at which the fetus can survive outside the womb. That, at the earliest, is the 22nd or 23rd week of pregnancy. The Supreme Court, in granting review in the Mississippi case, said the question before it is whether states can prohibit abortions before viability.
If the Court upholds the Mississippi law, then there is nothing to stop states from prohibiting abortions even earlier in pregnancy. Texas recently became the latest state to prohibit abortions once a fetal heartbeat can be detected, at about the sixth week of pregnancy. Alabama has adopted a law that prohibits virtually all abortions.
Opinion
The Supreme Court’s granting review in the Mississippi case is a clear signal of what to expect. The lower federal courts struck down the Mississippi law, as all similar laws across the country that prohibit abortions before viability have been declared unconstitutional. In each instance, the Supreme Court has denied review. There was no reason for the justices to take the case except to radically change the law with regard to abortion.
The reality is that there are now a majority of justices who will vote to overrule Roe. For decades, Republican presidents have appointed conservative justices with a primary goal of ending abortion rights. Justices Clarence Thomas and Samuel Alito have repeatedly urged the overruling of Roe. The three Trump appointees seem sure to join them.
Justice Neil Gorsuch has said he opposes judicial protection of any rights that are not mentioned in the Constitution or intended by its drafters. Justice Brett Kavanaugh wrote an opinion as a federal court of appeals judge that left no doubt where he stands on abortion rights. And the newest justice, Amy Coney Barrett, expressed strong opposition to Roe as a law professor. As a federal court of appeals judge, she voted to uphold laws restricting access to abortion. It is uncertain whether Chief Justice John Roberts will vote to overrule Roe, but without him there are five justices to do so.
Roe was right as a matter of constitutional law. The Supreme Court has long ruled that the word “liberty” in the due process clause protects privacy, even though that word does not appear in the Constitution. The Court has thus held that the Constitution protects a right to marry; a right to procreate and have children; a right of parents to control the upbringing of their children; a right to purchase and use contraceptives; a right of competent adults to refuse medical treatment and a right of consenting adults to engage in same-sex sexual activity.
Roe held that laws prohibiting abortions before viability infringe a basic aspect of a woman’s autonomy. There is not now, and never will be, a consensus as to when human life begins. The Court said prior to viability, the choice should be left to each woman as to whether to continue or terminate her pregnancy.
Overruling Roe will not end abortions in the United States, but rather leave the matter to each state to decide for itself. Places like California and New York will still allow abortions, but over half the states will prohibit all or almost all abortions. Women in these states who have the money to travel will go to states where abortions are legal. Before New York became the first state to legalize abortion, a significant percentage of abortions in England were performed on American women. One year before the Supreme Court’s decision in Roe v. Wade, over 100,000 women left their own state to obtain a legal abortion in New York City.
Women with resources who want an abortion will travel to where it is legal or be far more likely to find a friendly doctor to perform the procedure. It is poor women and teenagers who will be left to the cruel choice between an unsafe, back-alley abortion and an unwanted child.
I realize, of course, that some, including a majority of the Supreme Court justices, believe that human personhood begins at conception and that abortion is murder. Women with such a view, of course, can decide not to have abortions. But the fundamental holding of Roe is that women who have a different view should have the right to decide for themselves. Sadly, after almost 50 years, the United States is about to take a huge step backwards and end the constitutional right of women to have reproductive autonomy.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
